I recently met with Chief Judge Michael Vigil of the New Mexico Court of Appeals. He is the Democratic candidate for the New Mexico Supreme Court in next month’s general election. You can find his campaign website here.
Q. I’m here this afternoon with Chief Judge Michael Vigil of the Court of Appeals. Thank you for your time today.
A. It’s my pleasure to be here with you.
Q. Tell us about your family and background before going to law school.
A. My mother and my natural father divorced when I was very young. And that family, I’ve gotten to know them very well in recent years – the Vigiles of Española. They go back deep into the history of New Mexico. My grandfather and grandmother helped build the church up there in Española, the Sacred Heart Church. There’s actually a street named for them by the church. Their farm is where the community college is now located.
And I’ve found out that there is a relationship – it’s not real close – with Donaciano Vigil, the first governor of the Territory of New Mexico. So it’s a large family. I think there’s a chance I might even be related to Father Martinez of Taos fame, who brought the first printing press to New Mexico, and had some big fights with Archbishop Lamy. He was originally from Abiquiu, and had a large family there, and after his wife died, he went on to become a priest. And my great-great-grandfather on my mother’s side was a Martinez from Abiquiu.
Basically I was raised in the Air Force, and we traveled all over the world, and I went to four high schools before graduating finally from Santa Fe High School. Then I went on to the College of Santa Fe, where I got my B.A., and from there I went on to law school.
My mother and father really didn’t have money to send me to school, so I was going to join the Air Force Academy, and received an appointment, but at the last minute they sent me a postcard saying that I didn’t have enough background in math and science to succeed, so I was turned down.
So here I was in May, and I wrote to UNM, and they said they’ll accept me, but I didn’t have any money. My plan then was to join the Army, and in 1969 the Vietnam War was still going pretty strong. So my plan was to join the Army, and hopefully live, and then get the GI Bill.
I took my mother to lunch to tell her about my plan, and she said “What’s wrong with the College of Santa Fe? You can live at home. We’ll help you as much as we can.” I checked with the school, and they looked at my SAT or ACT score, and they asked if I’d looked at the dean’s scholarship, which would pay half the tuition. So I went and applied, and Brother Luke was the president at the time, and I got a dean’s or presidential scholarship. And that’s how I ended up at the College of Santa Fe.
Q. Why did you decide to attend law school, and where did you go?
A. Like many lawyers, I decided to attend law school because I didn’t know what to do! I had a B.A. from the College of Santa Fe, where I’d studied political science and history, and really didn’t know what I wanted to do. I asked people for advice, and a lot of them recommended law school, because they teach you to think in a certain way. So I applied to eight law schools, and four accepted me. And one of the four that accepted me was Georgetown Law School in Washington, D.C., so I decided to borrow money to go to school there.
That was the summer of Watergate, in 1973, and I got a job out there in Washington, and part of my education was learning about Watergate, and all the people that were involved. Senator Montoya of New Mexico was on the Watergate Committee, so I got to see all the hearings. During my first year of law school, I went to see the Watergate tapes case argued in the U.S. Supreme Court. I was the third person in line to see that. I had to spend the night out on the steps! It was an experience that you remember for the rest of your life.
A lot of players in the Watergate case had connections to Georgetown. It was super being in the capital. I got to watch U.S. Supreme Court oral arguments all the time, and other courts.
Q. Describe your career between leaving law school and joining the Court of Appeals.
A. I graduated from law school in 1976, the bicentennial. I applied to some law firms, and received some offers from big giant megafirms. And I was really not that interested in going to work for one of the multinational law firms.
I also applied to the Civil Rights Division at the Department of Justice, and was lucky enough to be selected for the job. The acceptance letter said the position was subject to funding. So I graduated, got my degree, and came back to New Mexico to take the bar exam. During the course of the summer, I tried to make contact with the people at DOJ, and could never reach anybody or get any answers about what was going on.
In the meantime, I had family and friends who were encouraging me to stay in New Mexico. I heard about a job at the New Mexico Court of Appeals. And I went to the clerk’s office at the Court of Appeals. I was driving a motorcycle in those days, and was wearing jeans and a t-shirt and a helmet. I inquired about whether the job was still open, the lady at the counter said “Yes, it is.” And she directed me to the basement.
I went down to the basement, and met Winston Roberts-Hohl, who was the original director of the Prehearing Division. He interviewed me then and there, and we hit it off immediately. He called me the following week and said I had the job if I wanted it. So I said, “You’ve got yourself a lawyer.” I started the following Monday, and went to work as one of the two original attorneys in the Prehearing Division at the New Mexico Court of Appeals. I stayed there almost three years.
I left there and came to Albuquerque, and worked with Ernesto Romero, who later became a district court judge. Then I was on my own for a while, and then met Billy Marchiondo, and ended up in his law firm, where I stayed for over twenty years, until I went to the New Mexico Court of Appeals.
Q. How were you selected to be on the Court of Appeals?
A. I was reading the newspaper one day, and had read that there were going to be two vacancies on the New Mexico Supreme Court. And that kind of got my thought process going, and I looked into it, and found out that now-Justice Ed Chavez had been working on getting appointed to the Supreme Court for a long period of time. He had already done a lot of background work, and contacted a lot of people. And he and Bill Carpenter came to my office one day, and I told him I was not going to compete with him for the Supreme Court, because I knew how hard he’d been working to get the job.
Then I found that Judge Bosson and Ira Robinson were competing to be on the ballot for the other vacancy. It was a pretty fierce competition. So I made a special trip to Santa Fe to talk to both of them, and said that in my view the Democrats were always fighting with each other, and that’s why we couldn’t get anything done. They were already in the battle, and I told them I was opting out.
Judge Bosson got the appointment to the Supreme Court, and won the election. A very narrow election. I went to his swearing-in, and former Governor Jerry Apodaca, who had been a former client of ours, my wife and I were sitting with him. Now there was a vacancy on the Court of Appeals, and I shared with him my hesitation about applying, and he said “You can’t catch a fish unless you have a hook in the water. And besides that, even if you don’t get it, people will at least know that you’re interested.” The rumor at the time was that a certain person had a likelihood of getting the appointment.
So my wife and I talked about it on the way back to Albuquerque, and I talked to my partner, Billy Marchiondo, and decided to go for it. And lo and behold, I applied, and got through the Commission, and got the appointment.
Q. Why have you decided to run for the New Mexico Supreme Court, and why should the voters choose you?
A. I decided to run because I would like to have a voice on the highest court of the State of New Mexico, in terms of where are law is going and where it will go. I bring a very unique background and perspective to the job. As I said before, I was a lawyer for twenty-seven years in a litigation law firm. Because of Billy Marchiondo’s reputation, we had cases in every judicial district in the state. I appeared in every judicial district.
We had all kinds of cases, criminal, civil, jury, non-jury, zoning, administrative law, divorce, family law, child custody, securities law. I have very unique experience as far as litigation goes. And when you’re in litigation, somebody loses and they appeal. Given my background, I was the one who had to defend or prosecute the appeals. And then we also got hired to do appeals, here and there. I was very surprised to learn, when I applied to the Court of Appeals, that I had over 50 formal, precedent-setting appellate decisions on the books, in all areas of the law.
Since being on the Court of Appeals, I’ve written over 1,000 opinions, and have sat on over 3,000 appeals. And of course, given our general jurisdiction on the Court, they cover the full gamut.
So that is the perspective, the experience, that I want to bring to the Supreme Court. I want my children to raise their children in the way that they see fit, and in the peace, security, and safety of their home. And that’s something I want to contribute to, as best I can.
One of my campaign slogans is “Justice is not only about laws, it’s about lives.” And that’s the perspective I bring, not only as a former trial lawyer, but now sitting on the Court of Appeals, I want to bring that perspective, the justice isn’t only about laws, it’s about lives, to the highest court in the state.
The other reason I would hope that people would vote for me is the perspective I want to bring to the Supreme Court: Quiero ser el juez de la plebe. I want to be the judge of the people, meaning everyone in the State of New Mexico, regardless of their race, religious background, or sexual orientation, Native American or Anglo. Doesn’t matter. Everyone is entitled to their day in court. Everyone is entitled to be heard. And I think I have the tools and the perspectives to give effect to that idea – that everyone in New Mexico in court deserves to be heard.
And those are the perspectives I’d like to bring. It’s a long answer, I know, but it’s an important job. I would hope that the voters would choose me for those reasons.
Q. Is there any one opinion, or opinions, that you’re especially proud of from your service on the Court of Appeals?
A. I wish I had gone over my list! There are several cases that I’m very proud of. One of them is in criminal law. The United States Supreme Court wrote an opinion, I think Justice Scalia wrote it, that says police officers can use a traffic violation as a pretext for stopping a car, meaning that the real reason they want to talk to you is to search your car, or inquire of you. That’s the real reason, because they think you’re a bad person, but they don’t have enough legal reason to do so. That’s Whren v. United States.
I had a case [State v. Ochoa, 2009-NMCA-002, 146 N.M. 32] where the officer was staking out a drug house, and he saw this SUV, didn’t know who it was, and it drove him crazy, because he didn’t recognize the guy. And the SUV had tinted windows, and one day he couldn’t stand it anymore, and one day he sent out a radio dispatch to stop this guy for a seat belt violation. A block away, a patrol car stopped the vehicle, and when that officer was asked whether there was a seat belt violation, he said “I don’t know, I couldn’t see anything because the windows were tinted; the only reason I stopped this car was because of this dispatch.”
The other officer arrived, and of course then they did a search and found some contraband. He was candid and said “The only reason I had this guy stopped was because I wanted to talk to him, not because the seat belt.” And as a matter of fact, he never got a citation for the seat belt.
The case was appealed on the basis that the New Mexico Constitution affords greater rights than the federal one, as far as a pretextual stop goes. I initially wrote an opinion saying that the misdemeanor arrest rule wouldn’t allow that stop by the second officer, because he didn’t see the violation. The Supreme Court reversed that and sent it back with instructions to decide the pretextual stop question. And there was some debate on the question, and we eventually wrote an opinion saying that the New Mexico Constitution would not allow pretextual stops in New Mexico.
I had litigated that issue as a private lawyer, and one question is how do you prove it? And we said that intent is something that courts decide every day, and it’s really a factual issue for the judge to decide. Defense lawyers, put on your evidence as to why you think it’s a pretext, and the State puts on its evidence as to why it doesn’t think that it is, and the judge decides. It’s a factual decision and on appeal we pay deference to the judge’s finding of fact. I think it’s done a lot to preserve constitutional rights, and to make police officers cognizant that they can’t go out there and do anything they want; they have to respect constitutional rights. There are so many motor vehicle laws, you could find anything – if there’s not enough tread on the tire – there are so many laws, you can always find an excuse.
More recently, we held [in Bustos v. City of Clovis, 2016-NMCA-018, 365 P.3d 67] that you cannot exclude a person from serving on a jury because of their race in a civil case. That’s well-settled in criminal cases. The reason I’m proud of that is – and I’m not trying to cast any aspersions on anyone – the reason I’m proud is because the right that you’re protecting is the right of the juror. They don’t have anybody speaking for them. And the jurisprudence we applied to that is somebody has to look out for the constitutional right of a person to sit on a jury, in particular in New Mexico where we say language should not be a barrier to serve on a jury or be a witness. We have all these interpretive programs across the state. And I’m very proud of that.
And I’m also proud to say that I was on the Court of Appeals panel [in Rodriguez v. Brand West Dairy, 2015-NMCA-097, 356 P.3d 546] that ruled that the farm and ranch exclusion under the Workers’ Compensation Act violated equal protection. And that was affirmed by the New Mexico Supreme Court.
And I could tell you others. In civil cases, I’ve been going over my decisions, and the theme that I’ve noticed, it’s been a consistent theme, is enforcing contracts, whether it’s in the insurance area or the commercial law area, or the landlord-tenant area, or oil and gas law, the opinions I’ve written have a very strong theme of enforcing bargained-for agreements. I don’t know if that was subconscious, but it was something that I noticed while looking over my opinions. Now that I’m aware of it, it’s something that I intend to continue to do, because particularly in business, contracts should be enforced by the courts. And I think the courts are obligated to enforce them.
Q. Is there anything you would change about New Mexico’s system for selecting appellate judges?
A. Yes, for all judges as a matter of fact, except maybe magistrates. When I became a lawyer in 1976, all the judges were elected. A lot of the judges were pretty sly guys. Every time they had a jury, they’d write down their names and addresses, and keep them in an index file, and birth dates, and so forth. So the judges remained in contact with their communities. Another thing they did was get all the lawyers together in a committee, and so who’s going to run against them in those circumstances?
And then Judge Brennan, he was the spearhead for enacting the form of selecting judges that we have now. And at that time, I was very much against judges being appointed and not having to run like they had before. In fact, we have this strange number on retention, and we were pushing for 60%, a high percentage for retention, and the strange number we have now, I think it’s 57%, is really the consequence of a compromise made in the committee at the last minute. So that’s how that came about.
So that was my perspective. Now, I was appointed to the Court of Appeals in 2003, and had to run in 2004. And I went into it, and campaigned, and the more I campaigned, I thought “This is wrong.” You’re riding a float in a parade, and you’re going to meetings, and you’re shaking hands, for a judicial position. And it just struck me that this is wrong. And you’re asked about your position on things, which you can’t express, and you’re asked about other things, and whether you support this or that, which you can’t express. Yet you’re running in a partisan election.
I won my election, with good strong numbers. But during that process, I concluded that judges should not have to run in a partisan political election. In my view, if I were the dictator, I would change the law. I think you can fine-tune the judicial selection process. There’s room there for improvement. I think that by and large it does a good job, they do a good job selecting qualified people for these positions. But I would leave it with the governor – once you’re appointed, you’re a judge – and I think I would leave in place retention elections so that the people still have a democratic voice in the judges being retained or not retained on the bench.
I think that would have a lot of salutary effects. What we’re seeing now less and less is people applying to be judges who have a civil background, and I think that’s very bad for the judiciary as a whole. I’m not saying anything bad against anybody, but I think it’s very necessary for people who have that background, who have actually litigated commercial law cases, who have actually litigated securities law cases, who have actually litigated commercial landlord-tenant cases, and oil and gas cases, for a couple of reasons. One is that you have to give up a perhaps lucrative practice to run a statewide campaign with no guarantee there. I think this would be one way of encouraging people in the private practice of law to apply to be trial judges and appellate judges. This would be hope, that this would open it up, because people are very hesitant to give up everything to go run a statewide campaign. It’s really a big deal, especially if you have a family.
Q. How would you describe your judicial philosophy?
A. I think I’ve already described it. Justice is not just about laws, it’s about lives. And every person deserves their day in court. And I would like to be the judge of the people. I think there’s a common theme in there that describes my judicial philosophy. If you want to get technical, I’ve already touched on the enforcement of contracts. But I think overall, that would be my philosophy.
I’ve told a story many times. To get on the ballot you have to collect nominating positions. I was out on New Year’s Eve collecting nominating petitions, and an older lady came by, and I had my clipboard with me, and I introduced myself, told her what I was doing, and asked if she would sign my petition. She took it, and looked at the petition, and looked at me, and looked again at the petition, and handed it back to me, and said “I’m not going to sign the petition.” She said “My son had a problem in the courts, and I was not heard.” It was not really confrontational, she was matter-of-fact. And she started walking away, and I said, “Ma’am, thank you for telling me that. Thank you for reminding me that courts are about the people, and if you don’t want to sign my petition, that’s okay, but I wanted to tell you thank you for reminding me of that.”
So it just drove the idea back home again, that the courts are for the people, all people.
Q. What appellate judge, living or dead, do you most admire, and why?
A. I’m going to go with Judge Joe W. Wood, one of the original four judges on the New Mexico Court of Appeals. He was like a mentor to me as a young lawyer out of law school. Judge Wood and Judge Hendley are really the heart and soul – and later on Judge Pickard too – of the New Mexico Court of Appeals.
Judge Wood would come in, and he would sit down at his desk, and he would start handwriting on a legal pad with a pen. And that’s how he wrote his opinions. When it was time to go to lunch, he put his pen down and went to lunch. You could almost tell the time of day by what he was doing, when he was coming and going. He was a hard, hard worker, and very intelligent. He would cut through all of the riffraff and get to the heart of the problem and resolve it. So I would list him as one of the top ones, as far as New Mexico goes.
As far as the U.S. Supreme Court goes, William O. Douglas, we all grew up with him. His last wife was one of my classmates. She was about thirty at the time, and I think her name was Cathy. Anyway, he was one of those you always looked to in those days. I did anyway. And Brandeis of course, I’ve read a lot about his life. But as far as New Mexico goes, Joe Wood is the top as far as I’m concerned.
Q. So what books, or books, have had the most influence on you?
A. The most influential book to me currently, and this is going to sound strange in way. Pope John Paul II, when he was bishop of Krakow, he had a huge following of young people. He taught at the university, and used to go to the mountains, and on canoeing trips, and so forth. He did a lot of counseling of young people, and married people, and so forth. He had in his chapel – in his cathedral he had a private chapel – and in there he put a work table. He would work before the altar, the blessed sacrament, and he wrote about this idea he had, the theology of the body. He had this box of papers about the theology of the body. He was elected Pope, and he wanted to publish them. And he was told “Your eminence, popes don’t publish, they don’t write books, you’re not supposed to do that, unless you’re writing official papers.”
So he says okay. At his Wednesday audiences, he would go out and read a chapter to the audience. Different people would translate it. And all of these talks were put together, and he was a philosopher, so there are some very difficult concepts, and yet also very simple. And finally, I forget his name, a man got together a consistent translation, and published The Theology of the Body. It’s very moving to me, and tells a lot about what people are, what human beings are, what their relationships are to each other, from one-on-one, to cities, to states, to countries. I would say that’s the most current one.
Q. What do you do for enjoyment in your free time, if you have any free time?
A. Lately I have no free time. What I’ve been doing the last few years is that before I go to bed each night I read. Biographies, historical novels, some philosophy books, some theology books. And it makes me sleep better, as opposed to watching television. I love to golf. I’m not good at it, but I love it. That, and spending time with my wife.
Q. Red or green, and where’s your favorite place to eat it?
A. When I was working in Santa Fe at the Court of Appeals, I started going to The Shed, because my mother used to work at Sear’s in Santa Fe. And I remember meeting her at The Shed. I ended up going there at least once a week, and met all the people there. Even today, you can have a line, and I walk up and they’ll get me a table. It’s kind of embarrassing. I remember one time in the winter. The patio was not open, but they went out and got a table, and cleared the snow off of it, and brought it inside for me. And all these people were looking at me, as if wondering what the heck was going on.
So, Red Number 4, with an extra layer, is what I order at The Shed. So that’s it.
Q. Chief Judge Vigil, thank you for your time today.
A. Thank you.
